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Tuesday, December 06, 2011

Judges, legal experts rebut union critique of Lykos crack-pipe policy

At the Houston Chronicle today, Brian Rogers has an item ("Crack policy puts Harris DA at odds with police") on the debate between Harris County DA Pat Lykos and local police unions over charging low-level drug users with "possession" for residue on a crack pipe. His report confirms Grits' assessment last week that the unions and their hand-picked DA candidate Mike Anderson made a political misstep by making this moderate and widely supported policy the centerpiece of their Lykos critique. For starters, by foregrounding an issue where Lykos agrees with the majority of local GOP judges, they get quotes like this one from Judge Michael McSpadden rebutting the unions' extremist stance:

State District Judge Michael McSpadden has presided over Houston's criminal cases since 1982. In that time, he said, the "War on Drugs" has been lost and he has changed his mind about his "get tough on crime" stance. He urges a policy of treatment and second chances for addicts.

"Pat Lykos and I are not close, and in fact probably don't like each other, but she's right about this," the veteran jurist said this week. "Almost everyone's in agreement except, I guess, the police unions."

McSpadden said he, not Lykos, has led the charge to change how these trace cases are handled.

"No one respects law enforcement more than I do, but they're wrong about this," McSpadden said. "I want them out there going after the career criminals, the sex offenders, the people who pose a real threat to our society, and not someone who has a residue amount of drugs."

Hear, hear!

Encouragingly, the reader comments under the Houston Chronicle story were, with few exceptions, overwhelmingly supportive of Lykos' stance and critical of the unions. Given the usual bent of Chronicle commenters, I found that surprising, but it confirms my sense that the issue the unions and Anderson chose to portray the incumbent DA as "soft on crime" will at best fall flat and potentially even backfire.

19 comments:

The Comedian
said...

If the police have nothing better to do than arrest citizens for traces of drug residue, then perhaps we need to downsize the force. Prosecuting these kinds of cases and incarcerating the offenders is a flagrant example of government waste and overreach.

Even conservative gurus like William F. Buckley and Milton Friedman favored ending the so-called "War on Drugs."

Of course the problem is that police, prosecutors and the Prison Industrial Complex see the "War on Drugs" as a full employment act for their respective professions.

It's really not about being "soft on crime." It's more about an attorney for the state unilaterally deciding not to enforce the law as established by the legislature. Possession of any MEASURABLE amount of cocaine (whether it's on a crack pipe or otherwise) is at least a State Jail felony. In the case of State Jail felony drug possession cases, the Penal Code provides a mechanism under Section 12.44 for those charges to be reduced to Class A misdemeanors. Regardless of one's feelings about the merits of prosecuting these kinds of cases, it is not the prosecutor's job to legislate or substitute their will for the elected policy making representatives of the voters. These debates need to take place and be resolved in Austin, and prosecutors should then apply that law. Otherwise, what you will have is law being enforced on an ad hoc basis from county to county based upon individual prosecutor's personal preferences or political philosophy. You may have the same conduct being prosecuted as felony in one county, being prosecuted as a misdemeanor (or not at all) in the next county. This is not fair to the public, and certainly not fair to persons accused.

1:06, you realize, don't you, that pre-Lykos Harris County was the outlier and every other large jurisdiction in the state charged (and currently charges) paraphernalia the same way Harris does now? Are all those other DAs also refusing to enforce the law? And don't you think, beyond "measurable," there should be enough of the drug at least to allow for defense testing upon request? That's why they set the threshold at .01 gram.

It's ironic indeed that you complain about the "law being enforced on an ad hoc basis from county to county based upon individual prosecutor's personal preferences." It was Chuck Rosenthal's personal preferences that for years kept Harris County tying up extra police, jail and crime-lab resources on these cases instead of using the paraphernalia statute as the Legislature intended. All Lykos did is bring the county's practices in line with the rest of the state, improving consistency instead of harming it.

the cops in Houston are also opposed to issuing a summons for small marihuana cases, as allowed by statute. The issue is not about law, its about politics and power. The cops are only doing this to line up behind her primary opponent which is why every insider in town knew they made their announcement the day before his.

Speaking of a law being enforced on an ad hoc basis from county to county, in 2009, when they substantially rewrote Section. 545.425, Transportation Code, relating to the use of cell phones and other electronic devices in motor vehicles, those legislators in Austin voted to leave it up to individual political subdivisions as to whether Sec. 545.425 will be enforced in those locales by including Subsections (b-1) and(d)(2).

Maybe HB55 was the start of a trend by the legislature. Enact a state law that criminalizes certain conduct but include a local option provision.

1:06, a District Attorney being ALLOWED to prosecute certain conduct under the law is not the same as a District Attorney being REQUIRED to prosecute that same conduct. So long as DA's have prosecutorial discretion, each individual DA can rightfully decide whether to prosecute any individual case and to what extent a case should be prosecuted.

I currently work as a patrol officer in Harris County and am torn on this issue. There are many of my co workers who happily claim a felony arrest on a crack pipe. I'm not a big fan of it normally. But people would be surprised how many career, hardcore criminals, I come in contact with who have "trace" amounts of crack, cocaine, or meth. The trace case is a tool used by good cops to put real criminals in jail to stop crime. Believe it or not but I know I've put quite a few aryan brotherhood members in jail on a trace amount of meth and have stopped a citizen from being robbed, burglarized, or worse. And I know a class c citation is a waste of manpower and work hours. I'm not spending an hour on a report and submitting a crack pipe, just to me destroyed, so I can write a ticket. There are bigger and better things to do than that.

All this controversy did was to bring to light just how good Lykos is. The police unions screwed this up big time. The comments on the Houston Chronicle's story where running 150-20 for Lykos. She's more popular now than ever before.

Solution simple, especially for indigent clients. Set every residue case for trial. Defense will have the court pay for chemical analysis of the residue. Defense will have the court pay for chemist to testify regarding that analysis. If there isn't enough residue to test, move for dismissal. If the test comes back positive, which it probably will, have the defendant take the stand, show remorse, admit guilt, and request that the jury grant him probation so he can get needed drug treatment. If he has no prior felony convictions, the jury must grant him probation in a state jail drug possession case.

Yes, there are career criminals that cause a lot of grief along the way, but "career criminal" is defined many ways, not always fairly. Every case should be judged on its own merits, not manipulated to get a predetermined result. This is why it is so hard to shake off the justice system once you're entangled in it. The presumption of innocence should be applied fully every time a charge is brought. People are flawed. The guy that did time for burglary at 20, is not necessarily the same man at 30. The residue argument should not be an end run around finding justice. That guy with a record may be doing well now, just happens to enjoy a little pot now and then, along with millions of his fellow citizens. That should not be grounds for assuming guilt in the current case. This is how we keep our prisons full and sucking up tax dollars every year.

At what point will it become so evident that the War on Drugs is just a huge money-pit/black hole that produces more misery than the drugs ever could? One that we can no longer afford without seriously distorting the fabric of society even worse than it is now?

Probably when the more desperate members of the electorate realize that the money wasted on it could go for much-needed social safety net programs.

How will that happen? Probably when some pol publicly challenges the police unions on the fact that they are among the very few fiscal beneficiaries of maintaining the present wasteful system. A challenge which the police unions are making ever more likely with their complaints.

For as times get ever tighter, the electorate's patience with how their hard-earned tax dollars are being spent will dwindle...and their patience with a pol that doesn't rein in the spending that doesn't benefit anyone but a 'special interest' will shrink even faster. The formerly 'sacred cows' of the DrugWar will, sooner or later, feel the eyes of the fiscal butchers upon their fat-marbled flanks. Now's not a time for them to mouth off, lest those fiscal butcher knives swing their way even faster.

This has little to do with high crimes and misdemeanors and everything to with money, the top lawman or law (woman) in this case has made a financial choice to look the other way, if she would go one step further and slam judges for drug testing (presumed innocent) defendants the high cost of their incarceration and the high cost of their drug testing could be taken out of the system as well.

To address the time it takes to issue a traffic ticket, (I don’t know either) but I do know that if you get arrested for not going to court for a traffic ticket it takes a minimum of 24 hours to get back out at both the Harris County Jail and the City of Houston Municipal Jail.

The family can’t even put up bail and that’s ridiculous.

If a person goes to jail for a traffic ticket they should be able to (at a bare minimum) get back out of jail within an hour or two. Somebody somewhere is getting a taxpayer funded paycheck for keeping class c misdemeanors in jail.

Normally a class c citation takes at most 20 min to complete in your car during the stop. But a drug paraphanelia citation requires a full blown report. Which means you have to take your self off the street to go and package the paraphanelia for submission into evidence, fill out the appropriate forms for destruction and submit the evidence. And like I said all that will happen is either the JP dismisses the case or more often than not the person won't go to court and a warrant is issued. Then when they finally get arrested they go to the magistrate downtown, plead guilty and get timed served on the 12 hours they spent being processed. I rather be in service, able to respond to calls then write citations for crack pipes. It would be interesting to find out how many more drug paraphanelia citations have been issued since the policy went into effect.

12/06/2011 10:43:00 PM -- Do you expect me to believe that you come across "many hardcore criminals who have "trace" amounts of crack, cocaine, or meth," and the only thing you can jail them on is the "crack pipe?"

I work in a high crime area. And it may shock you but sometimes we make contact with people just prior to them committing a crime. And yes, where I work a high average of the repeat thieves and burglars are...wait for it...meth users. Shocker I know. And the average patrol officer doesn't come into contact with someone in possession of 3 or more grams of cocaine or meth. Mostly .5 to maybe 2 grams. Like l said in my earlier post, I'm not about trace cases, but I don't agree it's a waste of time or money if it saves me from working your robbery or your burglary. And what I mean by trace cases does not include marijuana. That is another issue I think needs to be addressed. In my opinion the weights need I be adjusted as to what is a class a, b, and add a class c amount. My personal opinion is an ounce or more should be a class b, anything less a class c.

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